Bill S.1133

SENATE DOCKET, NO. 1234 FILED ON: 2/12/2021

SENATE . . . . . . . . . . . . . . No. 1133

By Mr. Tarr, a petition (accompanied by bill, Senate, No. 1133) of Bruce E. Tarr, Kay Khan, Thomas M. Stanley, Jason M. Lewis and other members of the General Court for legislation relative to parentage to promote children's security. The Judiciary.

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-Second General Court
(2021-2022)

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An Act relative to parentage to promote children's security.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Section 1 of chapter 209C of the General Laws, as appearing in the 2018 Official Edition, is hereby amended in line 3 by inserting after the word “children.” the following sentence:- It is the public policy of the Commonwealth under this chapter, as well as under chapter 209E, that every child has the same rights and protections under law as any other child without regard to the marital status or gender of the parents or the circumstances of the birth of the child, including whether the child was born as a result of assisted reproduction or surrogacy.

SECTION 1A. Section 1 of chapter 209C of the General Laws, as so appearing, is hereby amended by striking out, in line 11-12, the words “a man and woman” and inserting in place thereof the following word:- people.

SECTION 1B. Said section 1 of chapter 209C of the General Laws, as so appearing, is hereby amended by striking out, in lines 7 and 8, and in lines 14, 15 and 17, the word “paternity” and inserting in place thereof, in each instance, the following word:- parentage.

SECTION 2. Said section 1 of said chapter 209C, as so appearing, is hereby further amended by striking out, in line 11 and in line 20, the words “child born out of wedlock” and inserting in place thereof, in each instance, the following words:- nonmarital child.

SECTION 3. Section 2 of said chapter 209C, as so appearing, is hereby amended by striking out, in line 1, the word “Paternity” and inserting in place thereof the following word:- Parentage.

SECTION 4. Said section 2 of said chapter 209C, as so appearing, is hereby further amended by striking out, in lines 12, 13, 16, and in line 18, the word “paternity” and inserting in place thereof, in each instance, the following word:- parentage.

SECTION 5. Said section 2 of said chapter 209C, as so appearing, is hereby further amended by striking out, in line 5, the words “paternity filed pursuant to this chapter” and inserting in place thereof the following words:- parentage filed pursuant to this chapter or chapter 209E.

SECTION 6. Section 3 of said chapter 209C, as so appearing, is hereby amended by striking out, in lines 3, 7, lines 35 and 36, and in line 51, the word “paternity” and inserting in place thereof, in each instance, the following word:- parentage.

SECTION 7. Said section 3 of said chapter 209C, as so appearing, is hereby further amended by inserting after the word “parentage”, in line 4, the following words:- under this chapter.

SECTION 8. Section 4 of said chapter 209C, as so appearing, is hereby amended by striking out, in lines 1 and 11, the word “paternity”, and inserting in place thereof, in each instance, the following word:- parentage.

SECTION 9. Section 5 of said chapter 209C, as so appearing, is hereby amended by striking out, in lines 1 and 2, lines 19, 35, 55, 60 and 62, the word “paternity” and inserting in place thereof, in each instance, the following word:- parentage.

SECTION 10. Said section 5 of said chapter 209C, as so appearing, is hereby further amended by inserting after the word “mother”, in lines 3, 7, the first time it appears, and in line 17, the following words:- person who gave birth.

SECTION 11. Said section 5 of said chapter 209C, as so appearing, is hereby further amended by striking out, in line 4, the words “the mother” and inserting in place thereof the following words:- that person.

SECTION 12, Said section 5 of said chapter 209C, as so appearing, is hereby further amended by striking out, in line 4 and in line 9, the second time it appears, the word “father” and inserting in place thereof, in each instance, the following words:- other parent.

SECTION 13. Said section 5 of said chapter 209C, as so appearing, is hereby further amended by striking out, in lines 4 and 21, the word “himself” and inserting in place thereof, in each instance, the following word:- themselves.

SECTION 14. Said section 5 of said chapter 209C, as so appearing, is hereby further amended by striking out, in lines 21 and 22, the words “mother’s husband” and inserting in place thereof the following word:- spouse.

SECTION 15. Said section 5 of said chapter 209C, as so appearing, is hereby amended by striking out, in lines 24 to 37, inclusive, the words “mother and the putative father, whether either or both is a minor, and may be registered pursuant to section 11 only if the signatures of the mother and the father are notarized. If the mother of the child was or is married and the child’s birth occurs during the marriage or within 300 days of its termination by divorce, a voluntary acknowledgment of parentage naming the putative father may be executed by the mother and the putative father only if the mother and the person who was the spouse of the mother at the time of the child’s birth or conception sign an affidavit denying that the spouse is the father of the child; provided, however, that where the marriage has been terminated by annulment or by the death of either spouse, paternity of the putative father may only be established by filing a complaint to establish paternity as provided in this chapter. A mother and a putative father” and inserting in place thereof the following words:- person who gave birth and either a presumed parent or alleged genetic parent as provided in this chapter or an intended parent as provided in Article 6 of chapter 209E, whether either or both is a minor and may be registered pursuant to section 11 only if the signatures of both signatories are notarized or witnessed. If the person who gave birth to the child was or is married and the child’s birth occurs during the marriage or within 300 days of its termination by divorce, a voluntary acknowledgment of parentage naming the other parent may be executed by the person who gave birth and the other parent only if the person who gave birth and the person who was the spouse of the person who gave birth at the time of the child’s birth or conception sign an affidavit denying that the spouse is the parent of the child; provided, however, that where the marriage has been terminated by annulment or by the death of either spouse, parentage of the other parent may only be established by filing a complaint to establish parentage as provided in this chapter. A person who gave birth and the other parent.

SECTION 15A. Subsection (b) of said section 5 of said chapter 209C, as so appearing, is hereby further amended in line 50 by inserting, after the word “chapter.” the following sentence:- For the purposes of this chapter the term “alleged genetic parent”, means an individual who is alleged to be, or alleges that the individual is, a genetic parent or possible genetic parent of a child whose parentage has not been adjudicated. The term includes a putative parent, an alleged genetic father and alleged genetic mother. The term does not include: (A) a presumed parent; (B) an individual whose parental rights have been terminated or declared not to exist; or (C) a donor, as defined in chapter 209E, section 102.

SECTION 16. Section 6 of said chapter 209C, as so appearing, is hereby amended by striking out, in lines 1 and 2, the words “In all actions under this chapter a man is presumed to be the father of a child and must be joined as a party” and inserting in place thereof the following words:- A person is presumed to be the parent of a child and shall be joined as a party in all actions under this chapter.

SECTION 17. Said section 6 of said chapter 209C, as so appearing, is hereby further amended by striking out, in lines 3, 6, 11,14, 16, 18 and 26, the word “he” and inserting in place thereof, in each instance, the following words:- the person.

SECTION 18. Said section 6 of said chapter 209C, as so appearing, is hereby further amended by striking out, in lines 3, 7 and 32, the word “mother” and inserting in place thereof, in each instance, the following words:- person who gave birth.

SECTION 19. Said section 6 of said chapter 209C, as so appearing, is hereby further amended by striking out, in lines 21 to 23, inclusive, the words “he has acknowledged paternity in a parental responsibility claim as provided in section four A of chapter two hundred and ten and the mother” and inserting in place thereof the following words:- the person has acknowledged parentage in a parental responsibility claim as provided in section 4A of chapter 210 and the person who gave birth.

SECTION 20. Said section 6 of said chapter 209C, as so appearing, is hereby further amended by striking out subsection (b) and inserting in place thereof the following subsection:-

(b) Notwithstanding subsection (a), a spouse or former spouse shall not be required to be joined as a party if that person’s non-parentage of the child has previously been adjudicated in a proceeding between the spouse and the person who gave birth to the child in a court or administrative agency of competent jurisdiction.

SECTION 21. Said section 6 of said chapter 209C, as so appearing, is hereby further amended by adding the following subsection:-

(d) A presumption of parentage under this section may be overcome, and competing claims to parentage may be resolved, only by a valid denial of parentage under section 11 of this chapter or as follows:

(1) A presumption of parentage cannot be overcome after the child attains 2 years of age unless the court determines: (i) the presumed parent is not a genetic parent, never resided with the child, and never held out the child as the presumed parent’s child; or (ii) the child has more than 1 presumed parent.

(2) A proceeding to challenge the marital presumption by an alleged genetic parent who is not a presumed parent may be permitted by a court only if the alleged genetic parent proves, by clear and convincing evidence, that the alleged genetic parent has a substantial parent-child relationship with the child. If the court permits the proceeding, the court shall adjudicate parentage under chapter 209E, section 511.

(3) The following rules apply in a proceeding to adjudicate a presumed parent’s parentage of a child if the individual who gave birth to the child is the only other individual with a claim to parentage of the child: (i) If no party to the proceeding challenges the presumed parent’s parentage of the child, the court shall adjudicate the presumed parent to be a parent of the child; (ii) If the presumed parent is identified as a genetic parent of the child and that identification is not successfully challenged, the court shall adjudicate the presumed parent to be a parent of the child; (iii) If the presumed parent is not identified as a genetic parent of the child and the presumed parent or the individual who gave birth to the child challenges the presumed parent’s parentage of the child, the court shall adjudicate the parentage of the child in the best interest of the child based on the factors of chapter 209E, section 511(a) and (b).

(4) Subject to other limitations in this part, if in a proceeding to adjudicate a presumed parent’s parentage of a child, another individual in addition to the individual who gave birth to the child asserts a claim to parentage of the child, the court shall adjudicate parentage under chapter 209E, section 511.

SECTION 22. Section 7 of said chapter 209C, as so appearing, is hereby amended by striking out, in lines 3 and 4 and in line 8, the word “paternity” and inserting in place thereof, in each instance, the word:- parentage.

SECTION 23. Section 8 of said chapter 209C, as so appearing, is hereby amended by striking out, in lines 1, 2, 5 and 15, the word “paternity” and inserting in place thereof the following word:- parentage.

SECTION 24. Said section 8 of said chapter 209C, as so appearing, is hereby further amended by striking out, in line 7, the words “mother or putative father submits” and inserting in place thereof the following words:- person who gave birth or alleged genetic parent submits sufficient evidence, which may include evidence.

SECTION 25. Said section 8 of said chapter 209C, as so appearing, is hereby further amended by striking out, in lines 12 and 13, the word “father or mother” and inserting in place thereof the following word:- parent.

SECTION 26. Said section 8 of said chapter 209C, as so appearing, is hereby further amended by striking out, in line 16, the word “mother” and inserting in place thereof the following words:- person who gave birth.

SECTION 26A. Section 9 of said chapter 209C, as so appearing, is hereby amended by striking out, in line X, the word “mother” and inserting in place thereof, the following word: person who gave birth.

SECTION 27. Subsection (a) of section 10 of said chapter 209C, as so appearing, is hereby amended by striking out the first paragraph and inserting in place thereof the following paragraph:-

Upon or after an adjudication or voluntary acknowledgment of parentage for a nonmarital child, the court may award custody to either parent or to them jointly or to another suitable person as hereafter further specified as may be appropriate in the best interests of the child.

SECTION 28. Said section 10 of said chapter 209C, as so appearing, is hereby further amended by striking out subsection (b) and inserting in place thereof the following subsection:-

(b) Prior to or in the absence of an adjudication or voluntary acknowledgment of parentage, the person who gave birth shall have custody of a nonmarital child. In the absence of an order or judgment of a probate and family court relative to custody, the person who gave birth shall continue to have custody of a child after an adjudication of parentage or voluntary acknowledgment of parentage.

SECTION 29. Section 11 of said chapter 209C, as so appearing, is hereby amended by striking out, in line 2, the words “putative father” and inserting in place thereof, in each instance, the following words:- alleged genetic parent, presumed parent or intended parent.

SECTION 29A. Section 11 of said chapter 209C, as so appearing, is hereby further amended by striking out, in line 3 the word “mother” and inserting in place thereof the following words:- person who gave birth to.

SECTION 29B. Section 11 of said chapter 209C, as so appearing, is hereby further amended by striking out, in line 21 the word “mother” and inserting in place thereof the following words: - person who gave birth.

SECTION 30. Said section 11 of said chapter 209C, as so appearing, is hereby further amended by striking out, in lines 7, 20, 22, 37 and 49 the word “paternity” and inserting in place thereof, in each instance, the following word:- parentage.

SECTION 31. Said section 11 of said chapter 209C, as so appearing, is hereby amended by striking out, in line 21, the word “father” and inserting in place thereof the following word:- parent.

SECTION 32. Said section 11 of said chapter 209C, as so appearing, is hereby further amended by striking out, in lines 2 and 59, the word “father” and inserting in place thereof, in each instance, the following words:- parent, presumed parent or intended parent.

SECTION 33. Said section 11 of said chapter 209C, as so appearing, is hereby further amended by inserting after the word “be”, in line 16, the following words:- in a record signed by the person who gave birth and by the individual seeking to establish a parent-child relationship and the signatures must be and is hereby further amended by inserting after the word “public,” in line 17 and in line 77, the following words:- or witnessed.

SECTION 34. Said section 11 of said chapter 209C, as so appearing, is hereby further amended by striking out, in line 43, the word “rescind” and inserting in place thereof the following word:- challenge.

SECTION 35. Said section 11 of said chapter 209C, as so appearing, is hereby further amended by striking out the tenth sentence and inserting in place thereof the following sentence:- If either party rescinds the acknowledgment in a timely fashion and the basis of the acknowledgment is genetic parentage, the court shall order genetic marker testing and proceed to adjudicate parentage or nonparentage in accordance with this chapter; provided, however, that the rescinded acknowledgment shall constitute the proper showing required for an order to submit to such testing; and provided, further, that the rescinded acknowledgment shall be admissible as evidence of the alleged genetic parent’s parentage and shall serve as sufficient basis for admitting the report of the results of genetic marker tests.

SECTION 36. Said section 11 of said chapter 209C, as so appearing, is hereby further amended by striking out, in line 56, the word “nonpaternity” and inserting in place thereof the following word:- nonparentage.

SECTION 37. Said section 11 of said chapter 209C, as so appearing, is hereby further amended by striking out, in line 59, the word “a mother and father” and inserting in place thereof the following words:- parents.

SECTION 38 . Said section 11 of said chapter 209C, as so appearing, is hereby further amended by adding the following subsection:-

(e) If there are competing claims of parentage of a child with an acknowledged parent, the court shall adjudicate parentage as provided in section 511 of chapter 209E.

SECTION 39. Section 12 of said chapter 209C, as so appearing, is hereby amended by striking out, in line 2, the word “paternity” and inserting in place thereof the following word:- parentage.

SECTION 40. Section 13 of said chapter 209C, as so appearing, is hereby amended by striking out, in lines 1 and 2, the words “paternity or in which paternity of a child is an issue” and inserting in place thereof the following words:- parentage or in which parentage of a child is an issue pursuant to this chapter.

SECTION 41. Said section 13 of said chapter 209C, as so appearing, is hereby further amended by striking out, in lines 7 to 9, inclusive, the words “father is adjudicated not to be the father of the child; provided, however, that the child, the child’s mother, the person adjudicated to be the father” and inserting in place thereof the following words:- parent is adjudicated not to be the parent of the child; provided, however, that the child, the person who gave birth to the child, the person adjudicated to be the parent.

SECTION 42. Said chapter 209C is hereby further amended by striking out section 14, as so appearing, and inserting in place thereof the following section:-

Section 14. An action to establish parentage of a child pursuant to this chapter may be instituted during pregnancy but shall only be filed by the person to give birth or their representative or by the IV-D agency as set forth in chapter 119A on behalf of the person to give birth. In the case of any complaint brought prior to the birth of the child, no final judgment on the issue of parentage shall be made until after the birth of the child; provided, however, that the court may order temporary support or health care coverage.

SECTION 43. Section 16 of said chapter 209C, as so appearing, is hereby amended by striking out subsections (c), (d) and (e) and inserting in place thereof the following 3 subsections:-

(c) In an action pursuant to this chapter, the person who gave birth and the alleged parent shall be competent to testify and no privilege or disqualification created under chapter 233 shall prohibit testimony by a spouse or former spouse which is otherwise competent. If the person who gave birth is or was married, both that person and their spouse or former spouse may testify to parentage of the child.

(d) In an action to establish parentage, testimony relating to sexual access to the person who gave birth by an unidentified person at any time or by an identified person at any time other than the probable time of conception of the child is inadmissible in evidence unless offered by the person who gave birth.

(e) In an action to establish parentage based on alleged genetic parentage, the court may view the person who gave birth, the child and the alleged genetic parent to note any resemblance among the parties notwithstanding the absence of expert testimony.

SECTION 44. Said section 16(f) of said chapter 209C, as so appearing, is hereby further amended by striking out, in line 25, the word “mother” and inserting in place thereof the following words:- person who gave birth.

SECTION 45. Said section 16 of said chapter 209C, as so appearing, is hereby amended by striking out subsection (g) and inserting in place thereof the following subsection:-

(g) All other evidence relevant to the issue of parentage of the child, custody of a child or support of a child shall also be admissible.

SECTION 46. Section 17 of said chapter 209C, as so appearing, is hereby amended by striking out, in line 1, the words “paternity of a child born out of wedlock” and inserting in place thereof the following words:- parentage of a nonmarital child based on alleged genetic parentage.

SECTION 47. Said section 17 of said chapter 209C, as so appearing, is hereby further amended by striking out, in lines 4, 9, 10, 13,26 and 28, the word “mother” and inserting in place thereof, in each instance, the following words:- person who gave birth.

SECTION 48. Said section 17 of said chapter 209C, as so appearing, is hereby further amended by striking out, in lines 4, 10, 13, lines 21 and 22, 28, 31, lines 48 and 49, both times they appear, the word “father” and inserting in place thereof, in each instance, the following words:- genetic parent.

SECTION 49. Said section 17 of said chapter 209C, as so appearing, is hereby further amended by striking out, in lines 31 and 49, the word “father” and inserting in place thereof, in each instance, the following words:- parent.

SECTION 50. Said section 17 of said chapter 209C, as so appearing, is hereby amended in line 56 by inserting, after the word “party.” the following sentence:- Genetic testing shall not be used to challenge the parentage of an individual who is a parent under Article 6 of chapter 209E or to establish the parentage of an individual who is a donor as provided in said chapter 209E.

SECTION 51. Section 21 of said chapter 209C, as so appearing, is hereby amended by striking out, in line 2, the word “establishing paternity shall apply” and inserting in place thereof the following words:- determining the existence of a father and child relationship shall apply.

SECTION 52. Section 22 of said chapter 209C, as so appearing, is hereby amended by striking out, in line 9, the word “or”,- and by inserting after the word “nine D”, in lines 6 and 10, the following words:- , or 209E.

SECTION 53. Section 23 of said chapter 209C, as so appearing, is hereby amended by striking out, in lines 1, 10, 11 and 14, the word “paternity” and inserting in place thereof, in each instance, the following word:- parentage.

SECTION 54. The General Laws are hereby amended by inserting after chapter 209D the following chapter:

Chapter 209E

The Massachusetts Parentage Act.

Article 1. GENERAL PROVISIONS

Section 101. This chapter may be cited as the Massachusetts Parentage Act.

Section 102. For the purposes of this chapter the following terms shall, unless the context clearly requires otherwise, have the following meanings:

“Acknowledged parent”, an individual who has established a parent-child relationship through a voluntary acknowledgement of parentage.

“Adjudicated parent”, an individual who has been adjudicated to be a parent of a child by a court with jurisdiction.

“Alleged genetic parent”, an individual who is alleged to be, or alleges that the individual is, a genetic parent or possible genetic parent of a child whose parentage has not been adjudicated. The term includes a putative parent, alleged genetic father and alleged genetic mother. The term does not include: (A) a presumed parent; (B) an individual whose parental rights have been terminated or declared not to exist; or (C) a donor.

“Assisted reproduction”, a method of causing pregnancy other than sexual intercourse and includes but is not limited to:

(A) intrauterine, intracervical insemination, or vaginal insemination;

(B) donation of gametes;

(D) in-vitro fertilization and transfer of embryos; and

(E) intracytoplasmic sperm injection.

“Birth”, includes stillbirth.

“Child”, an individual whose parentage may be determined under this chapter.

“Child-support agency”, a government entity or public official authorized to provide parentage-establishment services under Title IV-D of the Social Security Act, 42 U.S.C. sections 651 through 669.

“Determination of parentage”, establishment of a parent-child relationship by a court adjudication or signing of a valid acknowledgment of parentage.

“Donor”, an individual who provides a gamete or gametes or an embryo or embryos intended for assisted reproduction or gestation, whether or not for consideration. This term does not include:

(A) a person who gives birth to a child conceived by assisted reproduction, except as otherwise provided in Article 7; or

(B) a parent or intended parent under Article 6 or Article 7.

“Embryo”, a cell or group of cells containing a diploid complement of chromosomes or a group of such cells, not including a gamete, that has the potential to develop into a live born human being if transferred into the body of a person under conditions in which gestation may be reasonably expected to occur.

“Gamete”, sperm or egg.

“Individual”, a natural person of any age.

“Intended parent”, an individual, married or unmarried, who manifests an intent to be legally bound as a parent of a child conceived by assisted reproduction or a gestational or genetic carrier agreement.

“Marriage”, includes any legal relationship that provides substantially the same rights, benefits and responsibilities as marriage and is recognized as valid in the state or jurisdiction in which it was entered.

“Parent”, an individual who has established parentage that meets the requirements of this chapter.

“Parentage” or “parent-child relationship”, the legal relationship between a child and a parent of the child.

“Presumed parent”, an individual who under section 6 of chapter 209C is presumed to be a parent of a child, unless the presumption is overcome in a judicial proceeding, a valid denial of parentage is made under section 5 of said chapter 209C or a court adjudicates the individual to be a parent.

“Record”, information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

“Sign”, with intent to authenticate or adopt a record to: (A) execute or adopt a tangible symbol; or (B) attach to or logically associate with the record an electronic symbol, sound or process.

“Signatory”, an individual who signs a record.

“State”, a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession under the jurisdiction of the United States. The term includes a federally recognized Indian tribe.

“Transfer”, a procedure for assisted reproduction by which an embryo or sperm is placed in the body of individual who will give birth to the child.

“Witnessed”, that at least 1 individual who is competent and disinterested has signed a record to verify that the individual personally observed a signatory sign the record.

Section 103. SCOPE.

(a) This chapter applies to an adjudication or determination of parentage.

(b) This chapter does not create, affect, enlarge or diminish parental rights or duties under the law of this state other than this chapter.

Section 104. AUTHORIZED COURT.

The probate and family court department has jurisdiction to adjudicate parentage under this chapter. The district, Boston municipal, and juvenile court departments shall retain concurrent jurisdiction over adjudication of parentage and to accept registration of voluntary acknowledgments of parentage as provided in section 3 of chapter 209C.

Section 105. APPLICABLE LAW.

The court shall apply the law of this state to adjudicate parentage under this chapter, regardless of:

(1) the place of birth of the child; or

(2) the past or present residence of the child.

Section 106. DATA PRIVACY.

A proceeding under this chapter is subject to the law of this state other than this chapter which governs the health, safety, privacy and liberty of a child or other individual who could be affected by disclosure of information that could identify the child or other individual, including address, telephone number, digital contact information, place of employment, Social Security number, and the child’s day-care facility or school.

Section 107. ESTABLISHMENT OF PARENTAGE.

To the extent practicable, a provision of this chapter applicable to a father-child relationship applies to a mother-child relationship and a provision of this chapter applicable to a mother-child relationship applies to a father-child relationship. This chapter is intended to allow access to establish parentage in a gender-neutral manner.

Article 2. PARENT-CHILD RELATIONSHIP

Section 201. ESTABLISHMENT OF PARENT-CHILD RELATIONSHIP.

A parent-child relationship is established between an individual and a child by any of the following:

(1) Birth: the individual gives birth to the child, except as otherwise provided in Article 7 of this chapter;

(2) Presumption: there is a presumption under section 6 of chapter 209C, unless the presumption is overcome in a judicial proceeding or a valid denial of parentage is made;

(3) Adjudication: the individual is adjudicated a parent of the child by a court with jurisdiction;

(4) Adoption: the individual adopts the child pursuant to chapter 210;

(5) Acknowledgment: the individual acknowledges parentage of the child under chapter 209C, unless the acknowledgment is rescinded or successfully challenged;

(6) De Facto Parentage: the individual is adjudicated a de facto parent of the child under section 508;

(7) Assisted reproduction: the individual’s parentage of the child is established under Article 6 of this chapter; or

(8) Gestational or genetic surrogacy agreement: the individual’s parentage of the child is established under Article 7 of this chapter.

Section 202. NONDISCRIMINATION.

Every child has the same rights under law as any other child without regard to the marital status or gender of the parents or the circumstances of the birth of the child.

Section 203. CONSEQUENCES OF ESTABLISHING PARENTAGE. Unless parental rights have been terminated or an exception has been stated explicitly in this chapter, a parent-child relationship established under this chapter applies for all purposes, including the rights and duties of parentage.

Section 204. FULL FAITH AND CREDIT.

The commonwealth shall give full faith and credit to a determination of parentage from another state if the determination is valid and effective in accordance with the law of the other state.

Article 3. [Reserved]

Article 4. [Reserved]

Article 5. PROCEEDING TO ADJUDICATE PARENTAGE

Section 501. PROCEEDING AUTHORIZED.

(a) A proceeding may be commenced to adjudicate the parentage of a child as provided for in this chapter. Except as otherwise provided in this chapter, the proceeding is governed by the Massachusetts rules of domestic relations procedure.

(b) A proceeding to adjudicate the parentage of a child born under a surrogacy agreement is governed by Article 7 of this chapter.

Section 502. STANDING TO MAINTAIN PROCEEDING.

Except as otherwise provided in sections 507 through 509, a proceeding to adjudicate parentage under this chapter may be maintained by:

(1) the child;

(2) the individual who gave birth to the child, unless a court has adjudicated that the individual is not a parent of the child;

(3) an individual who has an established parent-child relationship under section 201 of this chapter;

(4) an individual whose parentage of the child is to be adjudicated under this chapter;

(5) if the child is or was a recipient of any type of public assistance, by the IV–D agency as set forth in chapter 119A on behalf of the department of transitional assistance, the department of children and families, the division of medical assistance or any other public assistance program of the commonwealth;

(6) by the authorized agent of the department of children and families or any agency licensed under chapter 15D provided that the child is in their custody; or,

(7) a representative authorized by law of this state other than this chapter to act for an individual who otherwise would be entitled to maintain a proceeding but is deceased, incapacitated or a minor.

Section 503. NOTICE OF PROCEEDING.

(a) The plaintiff shall give notice of a proceeding to adjudicate parentage under Article 5 to the following individuals:

(1) the individual who gave birth to the child, unless a court has adjudicated that this individual is not a parent of the child;

(2) an individual who is a parent of the child under this chapter;

(3) a presumed, acknowledged, or adjudicated parent of the child;

(4) an individual whose parentage of the child is to be adjudicated;

(5) the child, if the child is above the age of 14; and

(6) if the child is a recipient of any type of public assistance, the IV–D agency as set forth in chapter 119A on behalf of the department of transitional assistance, the department of children and families, the division of medical assistance or any other public assistance program of the commonwealth.

(b) An individual entitled to notice under subsection (a) has a right to intervene in the proceeding.

(c) Lack of notice required by subsection (a) does not render a judgment void. Lack of notice does not preclude an individual entitled to notice under subsection (a) from bringing a proceeding under subsection (b) of section 511.

(d) A donor shall not be entitled to notice.

Section 504. PERSONAL JURISDICTION.

(a) The court may adjudicate an individual’s parentage of a child only if the court has personal jurisdiction over the individual.

Section 505. VENUE.

Venue for a proceeding to adjudicate parentage under this chapter is in the county of this state in which:

(1) the child resides or, for the purposes of Article 6 or 7, is or will be born;

(2) any parent or intended parent resides;

(3) the defendant resides or is located if the child does not reside in this state; or

(4) a proceeding has been commenced for administration of the estate of an individual who is or may be a parent under this chapter.

Section 506. ADJUDICATING PARENTAGE OF CHILD WITH ALLEGED GENETIC PARENT.

A proceeding to determine whether an alleged genetic parent who is not a presumed parent is a parent of a child shall be commenced pursuant to chapter 209C.

Section 507. ADJUDICATING PARENTAGE OF CHILD WITH PRESUMED PARENT.

(a) A proceeding to determine whether a presumed parent is a parent of a child shall be commenced pursuant to chapter 209C.

Section 508. ADJUDICATING CLAIM OF DE FACTO PARENTAGE OF CHILD.

(a) A proceeding to establish parentage of a child under this section may be commenced only by an individual who:

(1) is alive when the proceeding is commenced; and

(2) claims to be a de facto parent of the child.

(b) An individual who claims to be a de facto parent of a child shall commence a proceeding to establish parentage of a child under this section:

(1) before the child attains 18 years of age; and

(2) while the child is alive.

(c) The following rules govern standing of an individual who claims to be a de facto parent of a child to maintain a proceeding under this section:

(1) The individual shall file an initial verified pleading alleging specific facts that support the claim to parentage of the child asserted under this section. The verified pleading must be served on all parents and legal guardians of the child and any other party to the proceeding.

(2) An adverse party, parent, or legal guardian may file a pleading in response to the pleading filed under paragraph (1). A responsive pleading must be verified and must be served on parties to the proceeding.

(3) Unless the court finds a hearing is necessary to determine disputed facts material to the issue of standing, the court shall determine, based on the pleadings under paragraphs (1) and (2), whether the individual has alleged facts sufficient to satisfy by a preponderance of the evidence the requirements of paragraphs (1) through (7) of subsection (d).

If the court holds a hearing under this subsection, the hearing shall be held on an expedited basis. The court may enter an interim order concerning contact between the child and an individual with standing seeking adjudication under this section as a de facto parent of the child.

(d) In a proceeding to adjudicate parentage of an individual who claims to be a de facto parent of the child, if there is only 1 other individual who is a parent or has a claim to parentage of the child, the court shall adjudicate the individual who claims to be a de facto parent to be a parent of the child if the individual demonstrates by clear-and convincing evidence that:

(1) the individual resided with the child as a regular member of the child’s household for a significant period of time;

(2) the individual engaged in consistent caretaking of the child which may include regularly caring for the child’s needs and making day-to-day decisions regarding the child individually or cooperatively with another parent;

(3) the individual undertook full and permanent responsibilities of a parent of the child without expectation or payment of financial compensation;

(4) the individual held out the child as the individual’s child;

(5) the individual established a bonded and dependent relationship with the child, which is parental in nature;

(6) another parent of the child fostered or supported the bonded and dependent relationship required under paragraph (5). A parent’s consent to guardianship shall not be considered as evidence that a parent fostered or supported the bonded and dependent relationship required under (5); and

(7) continuing the relationship between the individual and the child is in the best interest of the child.

(e) A parent of the child may use evidence of duress, coercion, or threat of harm to

contest an allegation that the parent fostered or supported a bonded and dependent relationship as

provided in subsection (d)(6) of this section. Such evidence may include whether, within the prior ten years, the individual seeking to be adjudicated a de facto parent has been convicted of rape, assault with intent to commit rape, indecent assault and battery, assault or assault and battery on a family or household member domestic assault, of the child or a parent of the child; was the subject of a final abuse prevention order pursuant to Chapter 209A because the individual was found to have committed abuse against the child or a parent of the child; or was substantiated for abuse against the child or a parent.

(f) Subject to other limitations in this part, if in a proceeding to adjudicate parentage of an individual who claims to be a de facto parent of the child, there is more than 1 other individual who is a parent or has a claim to parentage of the child and the court determines that the requirements of subsection (d) are satisfied, the court shall adjudicate parentage under section 511 of this chapter.

(g) The adjudication of an individual as a de facto parent under this section does not disestablish the parentage of any other parent.

Section 508A. ADJUDICATING PARENTAGE OF CHILD WITH ACKNOWLEDGED PARENT.

(a) If a child has an acknowledged parent, a proceeding to challenge that acknowledgment of parentage or a denial of parentage, brought by a signatory to the acknowledgment or denial, is governed by chapter 209C.

(b) If a child has an acknowledged parent, the following rules apply to a proceeding to challenge the acknowledgment of parentage or denial of parentage brought by an individual, other than the child, who has standing under Section 502 and was not a signatory to the acknowledgment or denial:

(i) The individual must commence the proceeding not later than one year after the effective date of the acknowledgment unless the individual did not know and could not have reasonably known of the individual’s potential parentage due to a material misrepresentation or concealment, in which case the proceeding shall be commenced within one year after the discovery of the individual’s potential parentage.

(ii) After the action is commenced, the court must first determine whether permitting the proceeding is in the best interests of the child.

(iii) If the court finds that permitting the proceeding is in the best interests of the child, the court shall adjudicate parentage under section 511 of this chapter.

Section 509. ADJUDICATING PARENTAGE OF CHILD WITH ADJUDICATED PARENT.

(a) If a child has an adjudicated parent, a proceeding to challenge the adjudication, brought by an individual who was a party to the adjudication or received notice, is governed by the rules governing a collateral attack on a judgment.

(b) If a child has an adjudicated parent, the following rules apply to a proceeding to challenge the adjudication of parentage brought by an individual, other than the child, who has standing under section 502 and was not a party to the adjudication and did not receive notice under section 503:

(1) the individual must commence the proceeding not later than 2 years after the effective date of the adjudication;

(2) after the action is commenced, the court must first determine whether permitting the proceeding is in the best interest of the child; and

(3) if the court finds that permitting the proceeding is in the best interests of the child, the court shall adjudicate parentage under section 511 of this chapter.

Section 510. ADJUDICATING PARENTAGE OF CHILD OF ASSISTED REPRODUCTION.

(a) An individual who is a parent under Article 6 of this chapter or the individual who gave birth to the child may bring a proceeding to adjudicate parentage. If the court determines the individual is a parent under Article 6, the court shall adjudicate the individual to be a parent of the child.

(b) In a proceeding to adjudicate an individual’s parentage of a child, if another individual other than the person who gave birth to the child is a parent under Article 6, the court shall adjudicate the individual’s parentage of a child under section 511 of this chapter.

Section 511. ADJUDICATING COMPETING CLAIMS OF PARENTAGE.

(a) In a proceeding to adjudicate competing claims of, or challenges under this article or chapter 209C to, parentage of a child by 2 or more individuals, the court shall adjudicate parentage in the best interest of the child, based on:

(1) the age of the child;

(2) the length of time during which each individual assumed the role of parent of the child;

(3) the nature of the relationship between the child and each individual;

(4) the harm to the child if the relationship between the child and each individual is not recognized;

(5) the basis for each individual’s claim to parentage of the child; and

(6) other equitable factors arising from the disruption of the relationship between the child and each individual or the likelihood of other harm to the child.

(b) If an individual challenges parentage based on the results of genetic testing, in addition to the factors listed in subsection (a), the court shall consider:

(1) the facts surrounding the discovery that the individual might not be a genetic parent of the child; and

(2) the length of time between the time that the individual was placed on notice that the individual might not be a genetic parent and the commencement of the proceeding.

(c) The court may adjudicate a child to have more than 2 parents under this chapter if the court finds that it is in the best interests of the child to do so. A finding of best interests of the child under this subsection does not require a finding of unfitness of any parent or person seeking an adjudication of parentage.

Section 512. TEMPORARY ORDER.

(a) In a proceeding under this article, the court may issue a temporary order for child support if the order is consistent with law of this state other than this chapter and the individual ordered to pay support is:

(1) a presumed parent of the child;

(2) petitioning to be adjudicated a parent;

(3) identified as a genetic parent through genetic testing pursuant to this chapter or chapter 209C;

(4) an alleged genetic parent who has declined to submit to genetic testing pursuant to this chapter or chapter 209C;

(5) shown by a preponderance of evidence to be a parent of the child; or

(6) a parent under this chapter.

(b) A temporary order may include a provision for custody, parenting time, and visitation under law of this state other than this chapter.

(c) If the child on whose behalf an order of support is sought is a recipient of benefits pursuant to chapter 117, 118 or 119 and the department of transitional assistance, the department of children and families, the division of medical assistance or any other public assistance program has not been made a party, the court shall notify the IV-D agency of the order or judgment of support. Each judgment or order of support which is issued pursuant to this chapter shall conform to and shall be enforced in accordance with the provisions of chapter one hundred and nineteen A.

Section 513. CONSOLIDATING PROCEEDINGS.

(a) Except as otherwise provided in subsection (b) and consistent with the jurisdiction of the court under the law of this state other than this chapter, the court may combine a proceeding to adjudicate parentage under this chapter with a proceeding for adoption, termination of parental rights, care and protection, child custody or parenting time or visitation, guardianship, child support, divorce, annulment, separate support, administration of an estate or other appropriate proceeding.

(b) A defendant may not combine a proceeding described in subsection (a) with a proceeding to adjudicate parentage brought under chapter 209D, the Uniform Interstate Family Support Act.

Section 514. PROCEEDING BEFORE BIRTH.

Except as otherwise provided in Article 6 and Article 7 of this chapter, a proceeding to adjudicate parentage may be commenced before the birth of the child and an order or judgment may be entered before birth, but enforcement of the order or judgment of parentage must be stayed until the birth of the child.

Section 515. COURT TO ADJUDICATE PARENTAGE.

The court shall adjudicate parentage of a child without a jury.

Section 516. HEARING; INSPECTION OF RECORDS.

(a) On request of a party, the court may close a proceeding under this article to the general public.

(b) All complaints, pleadings, papers or documents filed pursuant to this article, including docket entries, shall not be available for inspection, unless a judge of probate and family court of the county where such records are kept, for good cause shown, shall otherwise order or unless requested by the child or the parties. All such complaints, pleadings, papers or documents shall be segregated.

Section 517. DISMISSAL FOR WANT OF PROSECUTION.

The court may dismiss a proceeding under this chapter for want of prosecution only without prejudice. An order of dismissal for want of prosecution purportedly with prejudice is void and has only the effect of a dismissal without prejudice.

Section 518. ORDER ADJUDICATING PARENTAGE.

(a) In a proceeding under this article, the court shall issue a final judgment adjudicating whether a person alleged or claiming to be a parent is the parent of a child.

(b) A final judgment under subsection (a) shall identify the child by name and date of birth.

(c) On request of a party and consistent with law of this state other than this chapter, the court in a proceeding under this article may order the name of the child changed.

(d) If the final judgment under subsection (a) is at variance with the child’s birth certificate, the court shall order the department of public health to issue an amended birth certificate.

Section 519. BINDING EFFECT OF DETERMINATION OF PARENTAGE.

(a) Except as otherwise provided herein:

(1) a signatory to an acknowledgment of parentage or denial of parentage is bound by the acknowledgment and denial as provided in chapter 209C; and

(2) a party to an adjudication of parentage by a court acting under circumstances that satisfy the jurisdiction requirements of section 2-201 of chapter 209D and any individual who received notice of the proceeding are bound by the adjudication.

(b) A child is not bound by a determination of parentage under this chapter unless: (1) the determination as based on an unrescinded acknowledgement of parentage and the acknowledgment is consistent with the results of genetic testing; (2) the determination was based on a finding consistent with the results of genetic testing and the consistency is declared in the determination or otherwise shown; (3) the determination of parentage was made under Article 6 or 7; or

(4) the child was a party or was represented by an attorney, guardian ad litem or similar individual in the proceeding.

(c) In a proceeding for divorce or annulment, the court is deemed to have made an adjudication of parentage of a child if the court acts under circumstances that satisfy the jurisdiction requirements of section 2-201 of chapter 209D, and the final order:

(1) expressly identifies the child as a “child of the marriage” or “issue of the marriage” or includes similar words indicating that both spouses are parents of the child; or

(2) provides for support of the child by a spouse unless that spouse’s parentage is disclaimed specifically in the order.

(d) Except as otherwise provided in subsection (b) or section 509, a determination of parentage may be asserted as a defense in a subsequent proceeding seeking to adjudicate parentage of an individual who was not a party to the earlier proceeding.

(e) A party to an adjudication of parentage may challenge the adjudication only under law of this state other than this chapter relating to appeal, vacation of judgment or other judicial review.

Article 6. ASSISTED REPRODUCTION

Section 601. SCOPE OF ARTICLE.

This article shall not apply to the birth of a child conceived by sexual intercourse or assisted reproduction by surrogacy agreement under Article 7.

Section 602. PARENTAL STATUS OF DONOR.

A donor is not a parent of a child conceived through assisted reproduction by virtue of the donor’s genetic connection.

Section 603. PARENTAGE OF CHILD OF ASSISTED REPRODUCTION.

An individual who consents under section 604 to assisted reproduction by a person with the intent to be a parent of a child conceived by the assisted reproduction is a parent of the child.

Section 604. CONSENT TO ASSISTED REPRODUCTION.

(a) Except as otherwise provided in subsection (b), the consent described in section 603 must be in a record signed by the individual giving birth to a child conceived by assisted reproduction and an individual who intends to be a parent of the child.

(b) Failure to consent in a record as provided by subsection (a), before, on or after birth of the child, does not preclude the court from finding consent to parentage if the court finds by a preponderance of the evidence that:

(1) prior to conception or birth of the child, both parties agreed that they would be parents of the child; or

(2) the individual who seeks to be a parent of the child voluntarily participated in and consented to the assisted reproduction that resulted in the conception of the child.

Section 605. LIMITATION ON SPOUSE’S DISPUTE OF PARENTAGE.

(a) Except as otherwise provided in subsection (b), an individual who, at the time of a child’s birth, is the spouse of the person who gave birth to the child by assisted reproduction may not challenge the individual’s parentage of the child unless:

(1) not later than 2 years after the birth of the child, the spouse commences a proceeding to adjudicate their own parentage of the child; and

(2) the court finds the spouse did not consent to the assisted reproduction, before, on or after birth of the child, or withdrew consent under section 607.

(b) A proceeding by a spouse to challenge that their own parentage of a child born by assisted reproduction may be commenced at any time if the court determines:

(1) the spouse neither provided a gamete for, nor consented to, the assisted reproduction;

(2) the spouse and the person who gave birth to the child have not cohabited since the probable time of assisted reproduction; and

(3) the spouse never openly held out the child as their child.

(c) This section applies to a spouse’s dispute of parentage even if the spouse’s marriage is declared invalid after assisted reproduction occurs.

(d) The person giving birth shall not challenge a spouse’s parentage under this section.

Section 606. EFFECT OF CERTAIN LEGAL PROCEEDINGS REGARDING MARRIAGE.

If a marriage of a person who gives birth to a child conceived by assisted reproduction is terminated through divorce or annulment before transfer or implantation of gametes or embryos to the person giving birth, a former spouse of the person giving birth is not a parent of the child unless the former spouse consented in a record that the former spouse would be a parent of the child if assisted reproduction were to occur after a divorce or annulment, and the former spouse did not withdraw consent under section 607.

Section 607. WITHDRAWAL OF CONSENT.

(a) An individual who consents under section 604 to assisted reproduction may withdraw consent any time before a transfer or implantation of gametes or embryos that results in a pregnancy, by giving notice in a record of the withdrawal of consent to the person who agreed to give birth to a child conceived by assisted reproduction and to any clinic or health-care provider who may be facilitating the assisted reproduction. Failure to give notice to the clinic or health- care provider does not affect a determination of parentage under this chapter.

(b) An individual who withdraws consent under subsection (a) is not a parent of the child under this article.

Section 608. PARENTAL STATUS OF DECEASED INDIVIDUAL.

(a) If an individual who intends to be a parent of a child conceived by assisted reproduction dies during the period between the transfer or implantation of a gamete or embryo and the birth of the child, the individual’s death does not preclude the establishment of the individual’s parentage of the child if the individual otherwise would be a parent of the child under this chapter.

(b) If an individual who consented in a record to assisted reproduction by a person who agreed to give birth to a child dies before a transfer or implantation of gametes or embryos, the deceased individual is a parent of a child conceived by the assisted reproduction only if:

(1) either:

(A) the individual consented in a record that if assisted reproduction were to occur after the death of the individual, the individual would be a parent of the child; or

(B) the individual’s intent to be a parent of a child conceived by assisted reproduction after the individual’s death is established by a preponderance of the evidence; and

(2) either:

(A) the embryo is in utero not later than 36 months after the individual’s death; or

(B) the child is born not later than 45 months after the individual’s death.

Section 609. LABORATORY ERROR.

If due to a laboratory error the child is not genetically related to either the intended parent or parents or any donor who donated to the intended parent or parents, the intended parent or parents are the parents of the child unless otherwise determined by the court.

Section 610. LIMITATIONS ON GENETIC TESTING.

Genetic testing, including genetic marker testing pursuant to section 11 of chapter 209C, shall not be used: (1) to challenge the parentage of an individual who is a parent under this Article; or (2) to establish the parentage of an individual who is a donor.

Section 611. PARENTAGE JUDGMENTS OF CHILDREN BORN OF ASSISTED REPRODUCTION.

(a)A party consenting to assisted reproduction, an individual who is a parent pursuant to sections 603 and 604 of this chapter, an intended parent or parents or the individual giving birth may commence a proceeding to obtain an order:

(1) Declaring that the intended parent or parents are the parent or parents of the resulting child immediately upon birth of the child and ordering that parental rights and responsibilities vest exclusively in the intended parent or parents immediately upon birth of the child; and

(2) Designating the contents of the birth certificate and directing the department of public health to designate the intended parent or parents as the parent or parents of the resulting child.

(b) A proceeding under this section may be commenced before or after the date of birth of the child, though an order issued before the birth of the resulting child does not take effect unless and until the birth of the resulting child. Nothing in this subsection shall be construed to limit the court’s authority to issue other orders under any other provision of the general laws.

(c)Neither the state, the department of public health nor the hospital where the child is or expected to be born shall be a necessary party to a proceeding under this section.

Section 612. INSPECTION OF DOCUMENTS.

All complaints, pleadings, papers or documents filed pursuant to this section, including docket entries, shall not be available for inspection, unless a judge of probate and family court of the county where such records are kept, for good cause shown, shall otherwise order or unless requested by the resulting child or a party. All such complaints, pleadings, papers or documents shall be segregated.

Article 7. PARENTAGE BY SURROGACY AGREEMENT

PART 1 GENERAL REQUIREMENTS

Section 701. DEFINITIONS.

In this article the following terms shall, unless the context clearly requires otherwise, have the following meanings:

“Genetic surrogate”, an individual who is at least 21 years of age, is not an intended parent and who agrees to become pregnant through assisted reproduction using the individual’s own gamete, under a genetic surrogacy agreement as provided in this article.

“Gestational surrogate”, an individual who is at least 21 years of age, is not an intended parent and who agrees to become pregnant through assisted reproduction using gametes that are not the individual’s own, under a gestational surrogacy agreement as provided in this article.

“Surrogacy agreement”, an agreement between 1 or more intended parents and an individual who is not an intended parent in which the person agrees to become pregnant through assisted reproduction and which provides that each intended parent is a parent of a child conceived under the agreement. Unless otherwise specified, surrogacy agreement refers to both a gestational surrogacy agreement and a genetic surrogacy agreement.

Section 702. ELIGIBILITY TO ENTER GESTATIONAL OR GENETIC SURROGACY AGREEMENT.

(a) To execute an agreement to act as a gestational or genetic surrogate, an individual shall:

(1) be at least 21 years of age;

(2) previously have given birth to at least 1 child;

(3) complete a medical evaluation related to the surrogacy arrangement by a licensed medical doctor;

(4) complete a mental-health consultation by a licensed mental health professional; and

(5) have independent legal representation of the person’s choice throughout the surrogacy agreement regarding the terms of the surrogacy agreement and the potential legal consequences of the agreement and that is paid for by the intended parent or parents.

(b) To execute a surrogacy agreement, each intended parent, whether or not genetically related to the child, shall:

(1) be at least 21 years of age;

(2) complete a mental-health consultation by a licensed mental health professional; and

(3) have independent legal representation of the intended parent’s choice throughout the surrogacy agreement regarding the terms of the surrogacy agreement and the potential legal consequences of the agreement.

Section 703. REQUIREMENTS OF GESTATIONAL OR GENETIC SURROGACY AGREEMENT: PROCESS.

A surrogacy agreement shall be executed in compliance with the following rules:

(1) At least 1 party shall be a resident of this state or, if no party is a resident of this state, at least 1 medical evaluation or procedure or mental-health consultation under the agreement shall occur in this state, or the birth is anticipated to or does occur in this state.

(2) An individual acting as a surrogate and each intended parent shall meet the requirements of section 702.

(3) Each intended parent, the individual acting as surrogate, and spouse, if any, of the individual acting as surrogate shall be parties to the agreement.

(4) The agreement shall be in a record signed by each party listed in paragraph (3).

(5) The surrogate and each intended parent shall receive a copy of the agreement.

(6) The signature of each party to the agreement shall be attested by a notary or witnessed.

(7) The individual acting as surrogate and, if married, the spouse of the individual acting as surrogate and the intended parent or parents shall have independent legal representation throughout the surrogacy agreement regarding the terms of the surrogacy agreement and the potential legal consequences of the agreement paid for by the intended parent or parents, and each counsel shall be identified in the surrogacy agreement. A single attorney for the individual acting as surrogate and the individual’s spouse, if married, and a single attorney for the intended parents is sufficient to meet this requirement, provided the representation otherwise conforms to the Rules of Professional Conduct.

(8) The intended parent or parents shall pay for independent legal representation for the individual acting as surrogate and the individual’s spouse, if any.

(9) The agreement shall be executed before a medical procedure occurs related to attempting to achieve a pregnancy in the individual acting as surrogate, other than the medical evaluation and mental health consultation required by section 702.

Section 704. REQUIREMENTS OF GESTATIONAL OR GENETIC SURROGACY AGREEMENT: CONTENT.

(a) A surrogacy agreement shall comply with the following requirements:

(1) An individual acting as surrogate agrees to attempt to become pregnant by means of assisted reproduction.

(2) Except as otherwise provided in sections 711, 715, and 716, the individual acting as surrogate and the surrogate’s spouse or former spouse, if any, have no claim to parentage of a child conceived by assisted reproduction under the surrogacy agreement.

(3) The surrogate’s spouse, if any, shall acknowledge and agree to comply with the obligations imposed on the individual acting as surrogate by the surrogacy agreement.

(4) Except as otherwise provided in sections709, 712, , 715, and 716, the intended parent or, if there are 2 intended parents, each one jointly and severally, immediately on birth of the child shall be the exclusive parent or parents of the child, regardless of the number of children born or gender or mental or physical condition of each child.

(5) Except as otherwise provided in sections 709, 712, 715, and 716, the intended parent or, if there are 2 intended parents, each parent jointly and severally, immediately on birth of the child shall assume responsibility for the financial support of the child, regardless of the number of children born or the gender or mental or physical condition of each child.

(6) The surrogacy agreement shall include information providing that the intended parent or parents shall be responsible for the surrogacy-related expenses, including medical expenses, of the individual acting as surrogate and the medical expenses of the child.

(7) The intended parent or parents are liable for the surrogacy-related expenses of the person acting as surrogate, including expenses for health care provided for assisted reproduction, prenatal care, labor and delivery and for the medical expenses of the resulting child that are not paid by insurance. This subdivision shall not be construed to supplant any health insurance coverage that is otherwise available to the individual acting as surrogate or an intended parent for the coverage of health care costs. This subdivision shall not change the health insurance coverage of the individual acting as surrogate or the responsibility of the insurance company to pay benefits under a policy that covers a individual acting as surrogate.

(8) The surrogacy agreement shall not infringe on the rights of the individual acting as surrogate to make all health and welfare decisions regarding the person, the person's body and the person's pregnancy throughout the duration of the surrogacy arrangement, including during attempts to become pregnant, pregnancy, delivery and post-partum. The agreement shall not infringe upon the right of the individual acting as surrogate to autonomy in medical decision making by, including, but not limited to, requiring the individual acting as surrogate to undergo a scheduled, nonmedically indicated caesarean section or to undergo multiple embryo transfer. Except as otherwise provided by law, any written or oral agreement purporting to waive or limit the rights described in this subdivision are void as against public policy.

(9) The surrogacy agreement shall include information about each party’s right under this article to terminate the surrogacy agreement.

(b) A surrogacy agreement may provide for:

(1) payment of consideration and reasonable expenses; and

(2) reimbursement of specific expenses if the agreement is terminated under this article.

(c) A right created under a surrogacy agreement is not assignable and there is no third- party beneficiary of the agreement other than the child.

Section 705. SURROGACY AGREEMENT: EFFECT OF SUBSEQUENT CHANGE OF MARITAL STATUS.

(a) Unless a surrogacy agreement expressly provides otherwise:

(1) the marriage of an individual acting as surrogate after the surrogacy agreement is signed by all parties shall not affect the validity of the agreement, the spouse’s consent to the surrogacy agreement is not required and the surrogate’s spouse is not a presumed parent of a child conceived by assisted reproduction under the surrogacy agreement; and

(2) the divorce or annulment of the individual acting as surrogate after the surrogacy agreement is signed by all parties shall not affect the validity of the surrogacy agreement.

(b) Unless a surrogacy agreement expressly provides otherwise:

(1) the marriage of an intended parent after the agreement is signed by all parties shall not affect the validity of a surrogacy agreement, the consent of the spouse of the intended parent is not required, and the spouse of the intended parent is not, based on the surrogacy agreement, a parent of a child conceived by assisted reproduction under the surrogacy agreement; and

(2) the divorce or annulment of an intended parent after the surrogacy agreement is signed by all parties shall not affect the validity of the surrogacy agreement and the intended parents are the parents of the child.

Section 706. INSPECTION OF DOCUMENTS.

All complaints, pleadings, papers or documents filed pursuant to this section, including docket entries, shall not be available for inspection, unless a judge of probate and family court of the county where such records are kept, for good cause shown, shall otherwise order or unless requested by the child resulting from the surrogacy agreement or by a party to the surrogacy agreement. All such complaints, pleadings, papers or documents shall be segregated.

Section 707. EXCLUSIVE, CONTINUING JURISDICTION.

During the period after the execution of a surrogacy agreement until 90 days after the birth of a child conceived by assisted reproduction under the surrogacy agreement, a court of this state conducting a proceeding under this chapter has exclusive, continuing jurisdiction over all matters arising out of the agreement. This section does not give the court jurisdiction over a child custody or child support proceeding if jurisdiction is not otherwise authorized by the law of this state other than this chapter.

PART 2. SPECIAL RULES FOR GESTATIONAL SURROGACY AGREEMENT

Section 708. TERMINATION OF GESTATIONAL SURROGACY AGREEMENT.

(a) A party to a gestational surrogacy agreement may terminate the agreement, at any time before an embryo transfer, by giving notice of termination in a record to all other parties. If an embryo transfer does not result in a pregnancy, a party may terminate the agreement at any time before a subsequent embryo transfer.

(b) Unless a gestational surrogacy agreement provides otherwise, on termination of the agreement under subsection (a), the parties are released from the agreement, except that each intended parent remains responsible for expenses that are reimbursable under the agreement and incurred by the individual acting as gestational surrogate through the date of termination.

(c) Except in a case involving fraud, neither an individual acting as gestational surrogate nor the surrogate’s spouse or former spouse, if any, is liable to the intended parent or parents for a penalty or liquidated damages, for terminating a gestational surrogacy agreement under this section.

Section 709. PARENTAGE UNDER GESTATIONAL SURROGACY AGREEMENT.

(a) Except as otherwise provided in subsection (c) or section 710(b) or 712, on birth of a child conceived by assisted reproduction under a gestational surrogacy agreement, each intended parent is, by operation of law, a parent of the child. Parental rights shall vest exclusively in the intended parent or parents immediately upon birth of the resulting child.

(b) Except as otherwise provided in subsection (c) or section 712, neither an individual acting as gestational surrogate nor the surrogate’s spouse or former spouse, if any, is a parent of the child.

(c) If a child is alleged to be a genetic child of the individual who agreed to be a gestational surrogate, the court shall, upon finding sufficient evidence, order genetic testing of the child. If the child is a genetic child of the individual who agreed to be a gestational surrogate, parentage shall be determined based on Articles 1 through 5 of this chapter.

(d) Except as otherwise provided in subsection (c) or subsection (b) of section 710 or section 712, if, due to a clinical or laboratory error, a child conceived by assisted reproduction under a gestational surrogacy agreement is not genetically related to an intended parent or a donor who donated to the intended parent or parents, each intended parent, and not the individual acting as gestational surrogate and the surrogate’s spouse or former spouse, if any, is a parent of the child.

Section 710. GESTATIONAL SURROGACY AGREEMENT: PARENTAGE OF DECEASED INTENDED PARENT.

(a) Section 709 applies to an intended parent even if the intended parent died during the period between the transfer of a gamete or embryo and the birth of the child.

(b) Except as otherwise provided in section 712, an intended parent is not a parent of a child conceived by assisted reproduction under a gestational surrogacy agreement if the intended parent dies before the transfer of a gamete or embryo unless:

(1) the surrogacy agreement provides otherwise; and

(2) the transfer of a gamete or embryo occurs not later than 36 months after the death of the intended parent or birth of the child occurs not later than 45 months after the death of the intended parent.

Section 711. GESTATIONAL SURROGACY AGREEMENT: ORDER OR JUDGMENT OF PARENTAGE.

(a) Except as otherwise provided in subsection (c) of section 709 or section 712, before, on or after the birth of a child conceived by assisted reproduction under a gestational surrogacy agreement, any party to the agreement may commence a proceeding in the probate and family court in the county where the intended parents(s) reside, where the individual acting as a gestational surrogate resides or where the resulting child is born or expected to be born for an order or judgment of parentage:

(1) declaring that each intended parent is a parent of the child and ordering that parental rights and duties vest immediately on the birth of the child exclusively in each intended parent;

(2) declaring that the individual acting as gestational surrogate and the surrogate’s spouse or former spouse, if any, are not the parents of the child;

(3) designating the content of the birth record in accordance with chapter 46 and directing the department of public health to designate each intended parent as a parent of the child;

(4) to protect the privacy of the child and the parties, declaring that the court record and related pleadings shall be impounded in accordance with section 706;

(5) if necessary, that the child be surrendered to the intended parent or parents;

(6) if necessary, that the hospital where the child will be or has been born, treat the intended parent(s) as the sole legal parent(s) for the purpose of naming and medical decisions; and

(7) for other relief the court determines necessary and proper.

(b) The court may issue an order or judgment under subsection (a) before or after the birth of the child, as requested by the parties.

(c) Neither this state or the department of public health nor any town clerk nor the hospital where the child is to be born is a necessary party to a proceeding under subsection (a). Any party to the surrogacy agreement not joining in the action shall be provided with notice of the proceeding.

(d) A complaint under this section shall be supported by the following: (i) sworn affidavits of the parties to the surrogacy agreement and the assisted reproductive physician demonstrating the intent of the parties for the intended parent or parents to be the sole legal parent or parents of the child and that the child was born pursuant to assisted reproduction and (ii) certifications from the attorneys representing the intended parent(s) and the individual acting as gestational surrogate that the requirements of sections 702, 703 and 704 have been met. A complaint supported by such affidavits and certifications shall be sufficient to establish parentage, and a hearing shall not be required unless the court requires additional information which cannot reasonably be ascertained without a hearing.

(e) Where a complaint satisfies subsection (d), a court shall, within 30 days of the filing of the complaint, issue an order or judgment of parentage. Such parentage orders or judgments issued under this section shall conclusively establish or affirm, where applicable, the parent-child relationship.

(f) In the event the certification required by subsection (d) of this section cannot be made because of a technical or nonmaterial deviation from the requirements of sections 702, 703 and 704 of this chapter, the court may nevertheless enforce the agreement and issue a judgment of parentage if the court determines the agreement is in substantial compliance with the requirements of said sections.

Section 712. EFFECT OF GESTATIONAL SURROGACY AGREEMENT.

(a) A gestational surrogacy agreement that substantially complies with sections 702, 703 and 704 is enforceable.

(b) If a child was conceived by assisted reproduction under a gestational surrogacy agreement that does not substantially comply with sections 702, 703 and 704, the court shall determine the rights and duties of the parties to the agreement consistent with the intent of the parties at the time of execution of the agreement. Each party to the agreement and any individual who at the time of the execution of the agreement was a spouse of a party to the agreement has standing to maintain a proceeding to adjudicate an issue related to the enforcement of the agreement.

(c) Except as expressly provided in a gestational surrogacy agreement or subsection (d) or (e) of this section, if the agreement is breached by the individual acting as gestational surrogate or 1 or more intended parents, the non-breaching party is entitled to the remedies available at law or in equity.

(d) Specific performance is not a remedy available for breach by an individual acting as gestational surrogate of a provision in the agreement that the individual acting as gestational surrogate be impregnated, terminate or not terminate a pregnancy, or submit to medical procedures.

(e) Except as otherwise provided in subsection (d), if an intended parent is determined to be a parent of the child, specific performance is a remedy available for:

(1) breach of the agreement by an individual acting as gestational surrogate which prevents the intended parent from exercising immediately on birth of the child the full rights of parentage; or

(2) breach by the intended parent which prevents the intended parent’s acceptance, immediately on birth of the child conceived by assisted reproduction under the agreement, of the duties of parentage.

PART 3. SPECIAL RULES FOR GENETIC SURROGACY AGREEMENT

Section 713. REQUIREMENTS TO VALIDATE GENETIC SURROGACY AGREEMENT.

(a) Except as otherwise provided in section 716, to be enforceable, a genetic surrogacy agreement shall be validated by a probate and family court. A proceeding to validate the agreement shall be commenced before assisted reproduction related to the surrogacy agreement.

(b) The court shall issue an order validating a genetic surrogacy agreement if the court finds that:

(1) sections 702, 703 and 704 of this chapter are satisfied; and

(2) all parties entered into the agreement voluntarily and understand its terms.

(c) An individual who terminates a genetic surrogacy agreement under section 714 shall file notice of the termination with the court and parties. On receipt of the notice, the court shall vacate any order issued under subsection (b).

Section 714. TERMINATION OF GENETIC SURROGACY AGREEMENT.

(a) A party to a genetic surrogacy agreement may terminate the agreement as follows:

An intended parent or individual acting as genetic surrogate who is a party to the agreement may terminate the agreement at any time before a gamete or embryo transfer by giving notice of termination in a record to all other parties. If a gamete or embryo transfer does not result in a pregnancy, a party may terminate the agreement at any time before a subsequent gamete or embryo transfer. The notice of termination shall be attested by a notary or witnessed.

(b) An intended parent or individual acting as genetic surrogate who terminates the agreement after the court issues an order validating the agreement under sections 713 or 716 of this chapter, but before the individual acting as genetic surrogate becomes pregnant by means of assisted reproduction, shall also file notice of the termination with such court.

(c) A person may not terminate a validated genetic surrogacy agreement if a gamete or embryo transfer has resulted in a pregnancy.

(d) On termination of the genetic surrogacy agreement, the parties are released from all obligations under the agreement except that any intended parent remains responsible for all expenses incurred by the individual acting as genetic surrogate through the date of termination which are reimbursable under the agreement. Unless the agreement provides otherwise, the individual acting as surrogate is not entitled to any non-expense related compensation paid for acting as a surrogate.

(e) Except in a case involving fraud, neither an individual acting as genetic surrogate nor the surrogate’s spouse or former spouse, if any, is liable to the intended parent or parents for a penalty or liquidated damages, for terminating a genetic surrogacy agreement under this section.

Section 715. PARENTAGE UNDER VALIDATED GENETIC SURROGACY AGREEMENT.

(a) On birth of a child conceived by assisted reproduction under a genetic surrogacy agreement validated under section 713 or 716 of this chapter, each intended parent is, by operation of law, a parent of the resulting child.

(b) On birth of a child conceived by assisted reproduction under a genetic surrogacy agreement validated under section 713 or 716 of this chapter, the intended parent or parents shall file a notice with the court that validated the agreement that a child has been born as a result of assisted reproduction. Upon receiving such notice, the court shall immediately, or as soon as practicable, issue an order without notice and hearing:

(1) declaring that any intended parent or parents is a parent of a child conceived by assisted reproduction under the agreement and ordering that parental rights and duties vest exclusively in any intended parent;

(2) declaring that the individual acting as genetic surrogate and the surrogate’s spouse or former spouse, if any, are not parents of the child;

(3) designating the contents of the birth certificate in accordance with chapter 46 and directing the department of public health to designate any intended parent as a parent of the child;

(4) to protect the privacy of the child and the parties, declaring that the court record is not open to inspection in accordance with section 706;

(5) if necessary, that the child be surrendered to the intended parent or parents; and

(6) for other relief the court determines necessary and proper.

(c) Except as otherwise provided in subsection (d) or section 717, if, due to a clinical or laboratory error, a child conceived by assisted reproduction under a genetic surrogacy agreement is not genetically related to an intended parent or a donor who donated to the intended parent or parents, each intended parent, and not the individual acting as genetic surrogate and the surrogate’s spouse or former spouse, if any, is a parent of the child.

(d) If a child born to an individual acting as genetic surrogate is alleged not to have been conceived by assisted reproduction, the court may, upon finding sufficient evidence, order genetic testing to determine the genetic parentage of the child. If the child was not conceived by assisted reproduction and the second source of genetic material is the spouse of the individual acting as genetic surrogate, then the surrogate and her spouse shall be found to be the parents of the child. If the second genetic source is an individual other than the spouse of the surrogate, then parentage shall be determined as provided in chapter 209C. However, if the second genetic source is an intended parent, the court, in its sole discretion, may determine parentage under Articles 1 through 5 of this chapter. Unless the genetic surrogacy agreement provides otherwise, the individual acting as genetic surrogate is not entitled to any non-expense related compensation paid for acting as a surrogate if the child was not conceived by assisted reproduction.

(e) If an intended parent fails to file the notice required under subsection (b) of this section, the individual acting as genetic surrogate may file with the court, not later than 60 days after the birth of a child conceived by assisted reproduction under the agreement, notice that the child has been born to the individual acting as genetic surrogate. On proof of a court order issued under sections 713 or 716 of this chapter validating the agreement, the court shall order that each intended parent is a parent of the child.

Section 716. EFFECT OF NONVALIDATED GENETIC SURROGACY AGREEMENT.

(a) A genetic surrogacy agreement, whether or not in a record, that is not validated under section 713 is enforceable only to the extent provided in this section and section 718.

(b) If all parties agree, a court may validate a genetic surrogacy agreement after assisted reproduction has occurred but before the birth of a child conceived by assisted reproduction under the agreement if the court finds that:

(1) sections 702, 703 and 704 of this chapter are satisfied; and

(2) all parties entered into the agreement voluntarily and understand its terms.(c) If a child conceived by assisted reproduction under a genetic surrogacy agreement that is not validated under section 713 or subsection (b) of this section is born, the individual acting as genetic surrogate is not automatically a parent and the court shall adjudicate parentage of the child based on the best interest of the child, taking into account the factors in subsection (a) of section 511 and the intent of the parties at the time of the execution of the agreement.

(d) The parties to a genetic surrogacy agreement have standing to maintain a proceeding to adjudicate parentage under this section.

Section 717. GENETIC SURROGACY AGREEMENT: PARENTAGE OF DECEASED INTENDED PARENT.

(a) Except as otherwise provided in section 715 or 716, on birth of a child conceived by assisted reproduction under a genetic surrogacy agreement, each intended parent is, by operation of law, a parent of the child, notwithstanding the death of an intended parent during the period between the transfer of a gamete or embryo and the birth of the child.

(b) Except as otherwise provided in section 715 or 716, an intended parent is not a parent of a child conceived by assisted reproduction under a genetic surrogacy agreement if the intended parent dies before the transfer of a gamete or embryo unless:

(1) the agreement provides otherwise; and

(2) the transfer of the gamete or embryo occurs not later than 36 months after the death of the intended parent, or birth of the child occurs not later than 45 months after the death of the intended parent.

Section 718. BREACH OF GENETIC SURROGACY AGREEMENT.

(a) Subject to section 714(d), if a genetic surrogacy agreement is breached by an individual acting as a genetic surrogate or 1 or more intended parents, the non-breaching party is entitled to the remedies available at law or in equity.

(b) Specific performance is not a remedy available for breach by an individual acting as genetic surrogate of a requirement of a validated or nonvalidated genetic surrogacy agreement that the surrogate be impregnated, terminate or not terminate a pregnancy, or submit to medical procedures.

(1) breach of a validated genetic surrogacy agreement by an individual acting as genetic surrogate of a requirement which prevents an intended parent from exercising, immediately upon birth of the child, the full rights of parentage; or

(2) breach by an intended parent which prevents the intended parent’s acceptance, immediately upon birth of the child, of the duties of parentage.

Article 8. MISCELLANEOUS PROVISIONS

Section 1. UNIFORMITY OF APPLICATION AND CONSTRUCTION.

In applying and construing this uniform act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

Section 2. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT.

This chapter modifies, limits or supersedes the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001 et seq., but does not modify limit, or supersede Section 101(c) of that act, 15 U.S.C. Section 7001(c), or authorize electronic delivery of any of the notices described in Section 103(b) of that act, 15 U.S.C. Section 7003(b).

Section 3. Severability.

If any provision of this chapter or its application to any individual or circumstance is held invalid, the invalidity shall not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application and to this end the provisions of this chapter are severable.

Section 4. Transitional provision.

This chapter applies to a proceeding in which no judgment has entered before the effective date of this act with respect to an individual’s parentage that has not already been adjudicated by a court of competent jurisdiction or determined by operation of law.

SECTION 55. This act shall take effect 1 year after its enactment

Name:	District/Address:
Bruce E. Tarr	First Essex and Middlesex
Kay Khan	11th Middlesex
Thomas M. Stanley	9th Middlesex	2/22/2021
Jason M. Lewis	Fifth Middlesex	2/23/2021
Michael J. Barrett	Third Middlesex	2/25/2021
Sheila C. Harrington	1st Middlesex	2/25/2021
Hannah Kane	11th Worcester	3/8/2021
Rebecca L. Rausch	Norfolk, Bristol and Middlesex	4/1/2021
Julian Cyr	Cape and Islands	4/14/2021
Sal N. DiDomenico	Middlesex and Suffolk	5/3/2021
Harriette L. Chandler	First Worcester	6/17/2021
Sonia Chang-Diaz	Second Suffolk	7/15/2021
Adam G. Hinds	Berkshire, Hampshire, Franklin and Hampden	8/23/2021
Joanne M. Comerford	Hampshire, Franklin and Worcester	10/22/2021
Patrick M. O'Connor	Plymouth and Norfolk	11/12/2021
Paul R. Feeney	Bristol and Norfolk	1/25/2022
Christina A. Minicucci	14th Essex	4/6/2022
Patricia D. Jehlen	Second Middlesex	7/15/2022